Ailment and Child Support

Divorce

When a married couple separate, one of the greatest worries is money and who pays for what.

Spouses have a duty to aliment each other. In other words, they have a duty to financially support each other while they are married. This can be important, particularly where spouses find themselves living separately, each with household bills and outlays to pay which had previously been shared.

When couples separate they will often try and agree the level of financial support to be paid. Where agreement is not possible, the court can be asked to make an order for aliment.

How much aliment is appropriate?

There is no specific formula for working out the aliment to be paid by spouses. The duty is to provide such support as is reasonable in the circumstances. When the court is asked to determine how much financial support is reasonable in any particular case, the factors which will be considered are:

(a) the needs and resources of the parties;(b) the earning capacities of the parties;(c) generally, all the circumstances of the case.

When looking at “needs”, the court will consider present and foreseeable needs and likewise with resources. The court may take into consideration any support given by the person being asked for aliment (the defender) to a dependant in his or her household, e.g. a new partner. The court will also consider financial support provided to a spouse from a source outwith the marriage.

A spouse’s conduct will not be taken into account when aliment is considered, unless it would clearly be unfair to leave it out of account.

Defences

There is a defence to a request for aliment where the defender offers to receive his or her spouse into his household. This is not a defence which is used often. The court would have to consider whether it is reasonable to expect the spouse applying for aliment to accept the offer. In considering this, the court would look at all of the relevant circumstances, including previous court orders made (particularly where domestic violence is/has been an issue), or the conduct of the spouses.

What if I am still living with my husband or wife?

It is possible to ask the court to grant an order for aliment where a married couple are still living together. However, if the spouse being asked for financial support can show that he or she is already providing adequate financial support and will continue to do so, this is a defence to a request for aliment.

How long does the duty to aliment last?

The obligation to provide financial support for a spouse in the form of aliment stops on divorce, or at an earlier date if the parties agree. On divorce, spouses can seek “financial provision”, which can take various forms including periodical allowance, which is a form of aliment that continues after divorce.

Does the duty to aliment apply between cohabitants who have separated?

No. It is only spouses who have a duty to aliment each other whilst they remain married.

Child maintenance

It is important to realise that the obligation to financially support a spouse is separate from that of child maintenance.

The Child Maintenance Service

Where a child is a “qualifying child”, the CMS is now the organisation which has jurisdiction to make decisions concerning child maintenance. Some existing cases remain to be enforced by the Child Support Agency. see https://www.gov.uk/child-maintenance

Do I have to use the CMS?

No. It is anticipated separated parents will agree between themselves how much child maintenance is to be paid. This can be an informal arrangement or can be formalised into a minute of agreement.

Who can make an application to the CMS?

A parent or person with care or a non-resident parent can ask the CMS to work out child maintenance and set up a payment arrangement, although that will incur a cost. However, when parents enter into a formal minute of agreement which makes provision for child maintenance, neither of them will be able to apply to the CMS for an assessment to be carried out until one year has passed since the signing of the agreement.

Generally, the courts do not deal with cases which relate to child maintenance. However, the courts do still have jurisdiction to deal with certain cases, for example 'top up claims' where the maintenance sought exceeds the maximum assessment the CMS can make.